Annexes to COM(2020)842 - Contestable and fair markets in the digital sector (Digital Markets Act) - Main contents

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier	COM(2020)842 - Contestable and fair markets in the digital sector (Digital Markets Act).
document	COM(2020)842
date	September 14, 2022

ANNEX

A. ‘General’

This Annex aims at specifying the methodology for identifying and calculating the ‘active end users’ and the ‘active business users’ for each core platform service listed in Article 2, point (2). It provides a reference to enable an undertaking to assess whether its core platform services meet the quantitative thresholds set out in Article 3(2), point (b) and would therefore be presumed to meet the requirement in Article 3(1), point (b). Such reference will therefore equally be of relevance to any broader assessment under Article 3(8). It is the responsibility of the undertaking to come to the best approximation possible in line with the common principles and specific methodology set out in this Annex. Nothing in this Annex precludes the Commission, within the time limits laid down in the relevant provisions of this Regulation, from requiring the undertaking providing core platform services to provide any information necessary to identify and calculate the ‘active end users’ and the ‘active business users’. Nothing in this Annex should constitute a legal basis for tracking users. The methodology contained in this Annex is also without prejudice to any of the obligations laid down in this Regulation, notably in Article 3(3) and (8) and Article 13(3). In particular, the required compliance with Article 13(3) also means identifying and calculating ‘active end users’ and ‘active business users’ based either on a precise measurement or on the best approximation available, in line with the actual identification and calculation capacities that the undertaking providing core platform services possesses at the relevant point in time. Those measurements or the best approximation available shall be consistent with, and include, those reported under Article 15.

Article 2, points (20) and (21) set out the definitions of ‘end user’ and ‘business user’, which are common to all core platform services.

In order to identify and calculate the number of ‘active end users’ and ‘active business users’, this Annex refers to the concept of ‘unique users’. The concept of ‘unique users’ encompasses ‘active end users’ and ‘active business users’ counted only once, for the relevant core platform service, over the course of a specified time period (i.e. month in case of ‘active end users’ and year in case of ‘active business users’), no matter how many times they engaged with the relevant core platform service over that period. This is without prejudice to the fact that the same natural or legal person can simultaneously constitute an ‘active end user’ or an ‘active business user’ for different core platform services.

B. ‘Active end users’

The number of ‘unique users’ as regards ‘active end users’ shall be identified according to the most accurate metric reported by the undertaking providing any of the core platform services, specifically:

It is considered that collecting data about the use of core platform services from signed-in or logged-in environments would prima facie present the lowest risk of duplication, for example in relation to user behaviour across devices or platforms. Hence, the undertaking shall submit aggregate anonymized data on the number of unique end users per respective core platform service based on signed-in or logged-in environments, if such data exists.

In the case of core platform services which are also accessed by end users outside signed-in or logged-in environments, the undertaking shall additionally submit aggregate anonymized data on the number of unique end users of the respective core platform service based on an alternate metric capturing also end users outside signed-in or logged-in environments, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags, provided that those addresses or identifiers are objectively necessary for the provision of the core platform services.

The number of ‘monthly active end users’ is based on the average number of monthly active end users throughout the largest part of the financial year. The notion ‘the largest part of the financial year’ is intended to allow an undertaking providing core platform services to discount outlier figures in a given year. Outlier figures inherently mean figures that fall significantly outside the normal and foreseeable figures. An unforeseen peak or drop in user engagement that occurred during a single month of the financial year is an example of what could constitute such outlier figures. Figures related to annually recurring occurrences, such as annual sales promotions, are not outlier figures.

C. ‘Active business users’

The number of ‘unique users’ as regards ‘active business users’ is to be determined, where applicable, at the account level with each distinct business account associated with the use of a core platform service provided by the undertaking constituting one unique business user of that respective core platform service. If the notion of ‘business account’ does not apply to a given core platform service, the relevant undertaking providing core platform services shall determine the number of unique business users by referring to the relevant undertaking.

D. ‘Submission of information’

The undertaking submitting to the Commission pursuant to Article 3(3) information concerning the number of active end users and active business users per core platform service shall be responsible for ensuring the completeness and accuracy of that information. In that regard:

a.	The undertaking shall be responsible for submitting data for a respective core platform service that avoids under-counting and over-counting the number of active end users and active business users (for example, where users access the core platform services across different platforms or devices).

The undertaking shall be responsible for providing precise and succinct explanations about the methodology used to arrive at the information and for any risk of under-counting or over-counting of the number of active end users and active business users for a respective core platform service and for the solutions adopted to address that risk.

c.	The undertaking shall provide data that is based on an alternative metric when the Commission has concerns about the accuracy of data provided by the undertaking providing core platform services.

For the purpose of calculating the number of ‘active end users’ and ‘active business users’:

The undertaking providing core platform service(s) shall not identify core platform services that belong to the same category of core platform services pursuant to Article 2, point (2) as distinct mainly on the basis that they are provided using different domain names, whether country code top-level domains (ccTLDs) or generic top-level domains (gTLDs), or any geographic attributes.

The undertaking providing core platform service(s) shall consider as distinct core platform services those core platform services, which are used for different purposes by either their end users or their business users, or both, even if their end users or business users may be the same and even if they belong to the same category of core platform services pursuant to Article 2, point (2).

The undertaking providing core platform service(s) shall consider as distinct core platform services those services which the relevant undertaking offers in an integrated way, but which:

(i)	do not belong to the same category of core platform services pursuant to Article 2, point (2); or

(ii)	are used for different purposes by either their end users or their business users, or both, even if their end users and business users may be the same and even if they belong to the same category of core platform services pursuant to Article 2, point (2).

E. ‘Specific definitions’

The table below sets out specific definitions of ‘active end users’ and ‘active business users’ for each core platform service.

Core platform services	Active end users	Active business users
Online intermediation services	Number of unique end users who engaged with the online intermediation service at least once in the month for example through actively logging-in, making a query, clicking or scrolling or concluded a transaction through the online intermediation service at least once in the month.	Number of unique business users who had at least one item listed in the online intermediation service during the whole year or concluded a transaction enabled by the online intermediation service during the year.
Online search engines	Number of unique end users who engaged with the online search engine at least once in the month, for example through making a query.	Number of unique business users with business websites (i.e. website used in commercial or professional capacity) indexed by or part of the index of the online search engine during the year.
Online social networking services	Number of unique end users who engaged with the online social networking service at least once in the month, for example through actively logging-in, opening a page, scrolling, clicking, liking, making a query, posting or commenting.	Number of unique business users who have a business listing or business account in the online social networking service and have engaged in any way with the service at least once during the year, for example through actively logging-in, opening a page, scrolling, clicking, liking, making a query, posting, commenting or using its tools for businesses.
Video-sharing platform services	Number of unique end users who engaged with the video-sharing platform service at least once in the month, for example through playing a segment of audiovisual content, making a query or uploading a piece of audiovisual content, notably including user-generated videos.	Number of unique business users who provided at least one piece of audiovisual content uploaded or played on the video-sharing platform service during the year.
Number-independent interpersonal communication services	Number of unique end users who initiated or participated in any way in a communication through the number-independent interpersonal communication service at least once in the month.	Number of unique business users who used a business account or otherwise initiated or participated in any way in a communication through the number-independent interpersonal communication service to communicate directly with an end user at least once during the year.
Operating systems	Number of unique end users who utilised a device with the operating system, which has been activated, updated or used at least once in the month.	Number of unique developers who published, updated or offered at least one software application or software program using the programming language or any software development tools of, or running in any way on, the operating system during the year.
Virtual assistant	Number of unique end users who engaged with the virtual assistant in any way at least once in the month, such as for example through activating it, asking a question, accessing a service through a command or controlling a smart home device.	Number of unique developers who offered at least one virtual assistant software application or a functionality to make an existing software application accessible through the virtual assistant during the year.
Web browsers	Number of unique end users who engaged with the web browser at least once in the month, for example through inserting a query or website address in the URL line of the web browser.	Number of unique business users whose business websites (i.e. website used in commercial or professional capacity) have been accessed via the web browser at least once during the year or who offered a plug-in, extension or add-ons used on the web browser during the year.
Cloud computing services	Number of unique end users who engaged with any cloud computing services from the relevant provider of cloud computing services at least once in the month, in return for any type of remuneration, regardless of whether this remuneration occurs in the same month.	Number of unique business users who provided any cloud computing services hosted in the cloud infrastructure of the relevant provider of cloud computing services during the year.
Online advertising services	For proprietary sales of advertising space: Number of unique end users who were exposed to an advertisement impression at least once in the month. For advertising intermediation services (including advertising networks, advertising exchanges and any other advertising intermediation services): Number of unique end users who were exposed to an advertisement impression which triggered the advertising intermediation service at least once in the month.	For proprietary sales of advertising space: Number of unique advertisers who had at least one advertisement impression displayed during the year. For advertising intermediation services (including advertising networks, advertising exchanges and any other advertising intermediation services): Number of unique business users (including advertisers, publishers or other intermediators) who interacted via or were served by the advertising intermediation service during the year.